The Kerala High Court has dismissed a Public Interest Litigation (PIL) challenging the “provisional approval of access” issued by the National Highways Authority of India (NHAI) to Bharat Petroleum Corporation Ltd. (BPCL) granting access permission for its proposed fuel outlet.
According to the petitioner, the BPCL has filed an application for access to a proposed retail outlet at Kottuvally Village, Paravur Taluk, Ernakulam. On the basis of the said application, the NHAI has given provisional approval for access in violation of “guidelines/norms for grant of permission for construction of access to fuel stations, wayside amenities, private properties, rest area complexes, connecting roads and such other facilities/establishments”.
The petitioner contended that as per clause 2.3 of guidelines, insofar as location norms for urban/mountainous stretches of National Highways are concerned, there should not be any intersection with any category of road and median gap within 100 metres from the proposed retail outlet location. However, contrary to the said norms, provisional approval for access has been granted to the proposed retail outlet of BPCL comprised in Kottuvally Village, Paravur Taluk, which has an intersection with a panchayat public road within 100 metres with a width of 4.2 meters on the southern side known as Mesthirippadi– Thirumuppam Road .
The petitioner states that permission has been obtained from NHAI suppressing material facts and without divulging that the proposed outlet has an intersection with panchayat public road which is in violation of clause 2.3 of guidelines. The petitioner states that the location of the outlet is in an urban area and therefore, clause 2.3 of the norms has to be followed which provides that there shall not be any intersection with any category of road and median gap within 100 metres from the proposed retail outlet location.
Accordingly, the petitioner prays for a direction to quash provisional permission given by NHAI for access to the retail outlet of BPCL and for direction to NHAI to verify whether there is violation of guidelines in issuing provisional approval for access.
A counter-affidavit has been filed on behalf of the 5th respondent (the Territory Manager of BPCL) contending that the petitioner has no locus standi to file the public interest litigation and has not stated his credentials in the writ petition as required for filing a public interest litigation. According to BPCL, the petitioner is only an interloper and the writ petition has been filed at the behest of a third party attempting to thwart the coming up of the retail outlet. It is further stated that the construction of the outlet has already reached an advanced stage and the petition, at this belated stage, cannot be entertained, and the writ petition has to be dismissed for delay and latches and since the petitioner has not made BPCL a respondent in the party array and has only made an officer (Territory Manager) of the BPCL a party to the writ petition, the petition has to be dismissed for misjoinder of parties and failure to array necessary parties. It is also stated that only a provisional permission for access, and only after all the relevant requirements are met, final approval will be issued by NHAI for starting the retail outlet.
Accordingly, it is contended that the petition is premature. On merits, it is contended that the retail outlet is constructed on the service road of the proposed 6-lane National Highway and that the relevant clause applicable is clause 2.1 of guidelines and not 2.2 or 2.3. Clause 2.1 of guidelines provides that, irrespective of the terrain, no norm shall be applicable if the retail outlet is proposed on the existing service roads/slip road. However, permission for retail outlet proposed on the existing service roads/slip roads is to be obtained from Highway Administration to regulate other requirements such as drainage facilities, plot size, drinking water, toilet facilities, signs, markings etc. It is therefore contended that since the outlet is on the service road, clause 2.3 of guidelines has no application.
The 6th respondent with whom the BPCL entered into the lease agreement has filed a counter-affidavit on similar lines.
A counter-affidavit has been filed by the 1st respondent (National Highways Authority of India) wherein it is stated that the outlet is being established on the service road and hence the category of the road is immaterial and irrelevant.
The Division Bench of Chief Justice S. Manikumar and Justice Murali Purushothaman held that since the retail outlet is established on the service road, irrespective of the terrain, no norm shall be applicable. Therefore, the petitioner cannot contend that clause 2.2 or 2.3 of the guidelines will apply for grant of provisional approval for access. It is stated by the NHAI that provisional approval for access is given after a detailed examination and on finding that all requirements for issuance of provisional approval for access, are satisfied. Therefore, the Bench did not find any illegality in the issuance of provisional approval for access to BPCL by NHAI.